3 Changes to Asylum (Coming This Month) That You Need To Know About
This blog post was written by Emma Kahn, NMILC’s Detention Services Coordinator. It was published January 8, 2020 and updated January 11, 2021.
Living and working within the asylum system over the past four years can only be described as a nightmarish rollercoaster. No amount of preparation or expertise could account for the viscously spontaneous and nonsensical obstructions. The Trump Administration’s attacks on asylum seekers have been so vast and ever-changing that I often struggle to remember them all. Every time I click on this timeline, recently created by our friends at NIJC, I feel like I’m visiting some kind of war memorial.
“The Trump Administration’s attacks on asylum seekers have been so vast and ever-changing that I often struggle to remember them all. ”
The election of Joe Biden and potential confirmation of Alejandro Mayorkas for Secretary of Homeland Security represent critical pivots from the Trump Administration’s xenophobic politics. Unfortunately, the new administration will inherit Trump’s last-ditch efforts to gut protections for our most vulnerable neighbors. In particular, three policy changes will soon pull the rug out from under tens of thousands of immigrants fleeing persecution.
Effective January 11: Trump's "Death To Asylum" Rule — Update 1/11/2021: This rule has been blocked!
The largest and most devastating change will begin on January 11th and will:
Restrict the definition of persecution to instances of severe harm at the hands of the government.
Narrow the scope of particular social groups-- one of five protected grounds for asylum-- to exclude claims related to gang violence and political threats.
Increase the burden on applicants to demonstrate why they could not obtain status in a third country.
Limit due process for asylum seekers who traveled through more than one country on their way to the U.S.
Restrict the kinds of evidence asylum seekers can present in support of their claims
Allow Immigration Judges to deny an asylum application without a hearing if the asylum seeker has not made a prima facie case.
This rule, which was first proposed in June 2020 and received over 80,000 public comments in opposition, will in part: scrutinize folks more harshly during the credible/reasonable fear interview process; essentially restrict the definition of persecution to instances of severe harm at the hands of the government; narrow the scope of particular social group-- one of five protected grounds for asylum-- to exclude claims related to gang violence and political threats; increase the burden on applicants to demonstrate why they could not obtain status in a third country; limit due process for asylum seekers who traveled through more than one country on their way to the U.S.; restrict the kinds of evidence asylum seekers can present in support of their claims; and allow Immigration Judges to deny an asylum application without a hearing if the asylum seeker has not made a prima facie case.
Effective January 15: Defensive asylum seekers will be required to file their applications within 15 days of their first court hearings.
Typically, an asylum seeker has one year after their most recent entry into the U.S. to file their application.
This rapid turnaround will prevent many asylum seekers from accessing programs that assist in preparing pro se asylum applications free of charge.
This new rule will disproportionately target asylum seekers who are in deportation proceedings (rather than those who are fighting their cases affirmatively.)
Considering that many asylum seekers lack access to private counsel and depend judges to explain the process to them, this rapid turnaround will prevent many asylum seekers from accessing programs like ours, which prepare pro se asylum applications free of charge. Ultimately, this new rule will disproportionately target asylum seekers who are in deportation proceedings (rather than those who are fighting their cases affirmatively). Click here to read a full review of this policy change.
Effective January 22: Bars anyone with symptoms or suspected contact with COVID-19.
Bans anyone who exhibits symptoms of and/or has come in contact with COVID-19 from Asylum and Withholding of Removal.
Expands current policies that scapegoat asylum seekers as “public health risks” to deny them status in the U.S., despite the government’s general refusal to take public health experts seriously at the national level.
Health evaluations would likely be conducted by unqualified, nonmedical professionals (namely, CBP and ICE officers at the border) and they could happen months-- even years-- before each asylum case would actually be adjudicated.
This will expand current policies that scapegoat asylum seekers as “public health risks” to deny them status in the U.S., despite the government’s general refusal to take public health experts seriously at the national level. Among the myriad of logical gaps in this rule, such health evaluations would likely be conducted by unqualified, non-medical professionals (namely, CBP and ICE officers at the border) and they could happen months-- even years-- before each asylum case would actually be adjudicated. Click here to read more about this rule.
These three policy changes represent just a sliver of the damage that the Biden Administration must work to undo. At NMILC, we will continue partnering with immigrant advocacy groups across the country to demand viable paths to comprehensive protection. This fight is going to be big and will require us all-- we must be ready to push our representatives at every level of government for a better system. We can get off this rollercoaster.
Thank you to NMILC’s Detention Services Coordinator, Emma Kahn, for writing this piece about the latest policy changes to asylum. If you are a medical or legal professional who would like to donate your time and expertise to help asylum seekers, please consider joining our team of pro bonos!
